The presence of the book Sex Is a Funny Word in Salado Public Library’s collection might be a violation of state law.
What the Law Says
Tex. Pen. Code § 43.235 states, in part (emphasis added):
Sec. 43.235. POSSESSION, PROMOTION, OR PRODUCTION OF CERTAIN VISUAL MATERIAL APPEARING TO DEPICT CHILD. (a) In this section:
(1) "Promote" has the meaning assigned by Section 43.25.
(2) "Visual material" has the meaning assigned by Section 43.26.
(b) A person commits an offense if the person:
(1) knowingly possesses, accesses with intent to view, or promotes obscene visual material containing a depiction that appears to be of a child younger than 18 years of age engaging in activities described by Section 43.21(a)(1)(B), regardless of whether the depiction is an image of an actual child, a cartoon or animation, or an image created using an artificial intelligence application or other computer software;
Section 43.235 says “‘[p]romote’ has the meaning assigned by Section 43.25.” Here is the relevant clause from that section (emphasis added):
Sec. 43.25. SEXUAL PERFORMANCE BY A CHILD. (a) In this section:
…
(5) "Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.
Section 43.235 also says “‘[v]isual material’ has the meaning assigned by Section 43.26.” Here is the relevant clause from that section (emphasis added):
Sec. 43.26. POSSESSION OR PROMOTION OF CHILD PORNOGRAPHY. (a) In this section:
…
(5) "Visual material" means:
(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or
(B) any disk, diskette, or other physical medium, or a file in any digital format, that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.
Section 43.235 refers to “activities described by Section 43.21(a)(1)(B)”. Here is the relevant clause from that section (emphasis added):
Sec. 43.21. DEFINITIONS. (a) In this subchapter:
(1) "Obscene" means material or a performance that:
…
(B) depicts or describes:
(i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs;
Information About the Book
Sex Is a Funny Word (hereafter abbreviated as “SIAFW”) was written by Cory Silverberg, with illustrations by Fiona Smyth. It was published by Seven Stories Press (New York, NY) in 2015, and its ISBN-13 number is 978-1-60980-607-1. The publisher’s web page for the book is: https://www.sevenstories.com/books/3486-sex-is-a-funny-word.
Here is an excerpt from the publisher’s description of the book:
A comic book for kids that includes children and families of all makeups, orientations, and gender identities, Sex Is a Funny Word is an essential resource about bodies, gender, and sexuality for children ages 8 to 10 as well as their parents and caregivers.
Below is the book’s cover and copyright page.
Salado Public Library (hereafter abbreviated as “SPL”) carries the book in its collection as an eBook. The permanent URL for the book’s page in the library’s catalog is: https://salado.biblionix.com/catalog/biblio/871629306.
Possible Violations of the Law
The presence of SIAFW in SPL’s collection may constitute multiple violations of Tex. Pen. Code § 43.235. The details of each possible violation are below.
By carrying SIAFW in its collection and making it available for checkout, SPL “promotes” this material consistent with the definition in Section 43.25(a)(5): “‘Promote’ means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above” (emphasis added).
SPL procures the material by purchasing SIAFW directly from the publisher or indirectly through its membership in a library consortium that carries the title; SPL circulates the material by making SIAFW available for checkout; SPL lends the material to patrons who check out SIAFW; and SPL transmits the material by making SIAFW available in digital form to patrons who check it out.
Since SIAFW is an eBook that is displayed on a computer or other video screen and is transmitted over the internet, it meets the definition for “visual material” in Section 43.26(a)(5)(B): “‘Visual material’ means … a file in any digital format, that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.”
Possible violation #1
Section 43.235(b)(1) says a person commits an offense if the person “knowingly possesses, accesses with intent to view, or promotes obscene visual material containing a depiction that appears to be of a child younger than 18 years of age engaging in activities described by Section 43.21(a)(1)(B), regardless of whether the depiction is an image of an actual child, a cartoon or animation …”.
One of the activities described in Section 43.21(a)(1)(B) is “… patently offensive representations or descriptions of masturbation …”.
Page 106 of SIAFW depicts a prepubescent girl—the publisher advertises the book as being for children ages 8 to 10—masturbating in a bathtub. This is clear from:
- The heading at the top of the page: “TOUCHING YOURSELF”.
- The image itself, which shows the girl extending one arm beneath the water and appearing to experience sensations of pleasure.
- The text on the following page—whose subject matter is a continuation of page 106—which says in part: “You may have discovered that touching some parts of your body, especially the middle parts, can make you feel warm and tingly. [¶] Grown-ups call this kind of touch masturbation. [¶] Masturbation is when we touch ourselves, usually our middle parts, to get that warm and tingly feeling.”
The image is “patently offensive” per Section 43.21(a)(1)(B) because it visually represents a prepubescent child engaging in sexual activity, which, per se, is patently offensive.
Possible violation #2
Page 107 of SIAFW also depicts a prepubescent girl masturbating. This is clear from:
- The preceding page, which has the heading, “TOUCHING YOURSELF”.
- The text on this page, as quoted above in bullet point #3.
- The image itself, which shows the girl with her hand on her groin area and appearing to experience sensations of pleasure.
Possible violation #3
Page 68 of SIAFW also depicts a prepubescent girl masturbating. This is clear from:
- The heading at the top of the page: “ERECTIONS”.
- The image itself, which shows the girl with her hand between her legs and appearing to experience sensations of pleasure.
- The text on this page, which says in part: “Most bodies get erections, but they only happen in certain parts of your body. … If your body has a clitoris, you might have noticed that sometimes it feels soft, and sometimes it feels a bit harder or firmer. When it’s harder or firmer, that’s an erection. [¶] Erections can happen when we touch ourselves to feel good …”
Possible violation #4
Section 43.235(b)(1) says a person commits an offense if the person “knowingly possesses, accesses with intent to view, or promotes obscene visual material containing a depiction that appears to be of a child younger than 18 years of age engaging in activities described by Section 43.21(a)(1)(B), regardless of whether the depiction is an image of an actual child, a cartoon or animation …”.
Two of the activities described in Section 43.21(a)(1)(B) are “… lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal …”.
Pages 65 and 67 of SIAFW depict the genitals of prepubescent girls and boys from varying distances and angles, in different stages of development. In all cases the children are uncovered and there is no attempt to hide or disguise their genitals.
Furthermore, these images may depict male and female genitals “in a state of sexual stimulation or arousal,” but that is less clear.
Comments are closed.